Order 1

Order Details: Notice of Motion
Pdf Text: 1 NM 1154-2018 in SU-657-2018
IN THE CITY CIVIL COURT AT MUMBAI.
NOTICE OF MOTION NO.1154 OF 2018
(CNR No.MHCC01-003737-2018)
IN
SUIT NO. 657 OF 2018.
(CNR No.MHCC01-002916-2018)
Luizinha Nunes Wd/o Aloysius Nunes & Ors.}...PLAINTIFFS.
Versus
Lawrie Hermangild Nunes & Ors. }...DEFENDANTS.
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Shri.D’Mello, learned advocate for the plaintiffs.
Shri.Walwekar, learned advocate for defendant No.1.
Shri.Prabhawalkar, learned advocate for defendant No.2.
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CORAM : HIS HONOUR JUDGE SHRI.P.P.RAJVAIDYA (C.R.NO.62)
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O R A L O R D E R
(Delivered on 22/11/2021)
1. By filing this Notice of Motion, plaintiffs have claimed
reliefs as under;
a) That pending the hearing and final disposal of this suit, this
Hon’ble Court by a Temporary Order & Injunction restrain the
defendant No.1 from in any manner inducting the defendant
No.2, his servants and agents and/or any third party into the 1st
floor premises of ‘Lawrie House’ shaded blue and yellow on the
plan annexed hereto as Exhibit -’G’ or any other part of the suit
property namely, the bungalow ‘Lawrie House’ or the land or any
part thereof situated at 70, Bhawani Shankar Road, Dadar West,
Mumbai 400 028.
b) That pending the hearing and final disposal of this suit, this
Hon’ble Court by a Temporary Order and Injunction restrain the
defendant No.2 his servants and agents from entering upon or
remaining on the 1st floor premises of ‘Lawrie House’ shaded blue
and yellow on the plan annexed hereto as Exhibit ‘G’ or any other
part of the bungalow ‘Lawrie House’ or the land or any part
thereof situated at 70, Bhawani Shankar Road, Dadar West,
Mumbai-400 028.
2. Read the affidavits filed in support of their respective
contentions by both the parties. Heard learned Shri.D’Mello advocate
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for the plaintiffs, learned Shri.Walwekar advocate for defendant No.1
and learned Shri.Prabhawalkar advocate for defendant No.2. Perused
the entire record.
3. Following points arose for my consideration. I answered
those points for the reasons stated thereunder.
POINTS FINDINGS
i) Whether
prima-facie case is made out by the
plaintiffs? ...Yes.
ii) Whether balance of convenience lies in their
favour? ...Yes.
iii) Whether irreparable loss will cause to the
plaintiffs if interim injunctions as prayed are not
granted? ...Yes.
iv) What order? ...As per final order.
R E A S O N S
AS TO POINT NOs.(i) TO (iii):
4. All the points are taken together for consideration. Learned
advocate for the plaintiffs argued that suit property is a dwelling house
jointly owned by the plaintiffs and defendant No.1 yet, defendant No.1
has sold his undivided 1/3rd share in the suit property to defendant
No.2 who is not a member of the family of plaintiffs and defendant
No.1. He argued that on the basis of the said sell transaction, defendant
No.1 is intending to put defendant No.2 in possession of the suit
property. He argued that defendant No.1 had given an option to the
plaintiffs to purchase his undivided share in the suit property however,
defendant No.1 had deliberately mentioned huge amount in the letter
served on the plaintiffs in that regard. He argued that defendant No.1
has sold his 1/3rd share to defendant No.2 at much lesser amount than
mentioned in said letter. He argued that many crimes are registered
against defendant No.2, it would not be just if defendant No.2 enters
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the suit property and starts residing therein jointly with the plaintiffs
due to which, in view of Section 44 of Transfer of Property Act, it is
necessary to grant temporary injunctions as claimed in favour of the
plaintiffs. In support of his argument, learned advocate for the plaintiffs
has placed reliance on the following authorities.
i)
Dulal Chandra Vs. Gosthabehari Mitra
reported in
AIR 1953 Calcutta 259,
ii)
Mohiddin Molla Vs. Jitendranath Karmarkar
reported in
AIR 1976 Calcutta 288,
iii)
Dorab Cawasji Warden Vs. Coomi Sorab Warden
reported in
AIR 1990 Supreme Court 867.
I have gone through those authorities.
5. As against this, learned advocate for the defendant No.1
argued that defendant No.1 had given opportunity to the plaintiffs to
avail their right to purchase the share of defendant No.1 in the suit
property but plaintiffs failed hence, defendant No.1 has sold his share to
defendant No.2 as per conveyance dtd.02/08/2017 and handed over
possession by executing possession receipt dtd.13/11/2017. He argued
that plaintiffs have not produced any material to show that suit
property is a dwelling house. He argued that there are four separate
units in the suit property as per the oral family arrangement, plaintiff
No.4 & plaintiff No.6 are not residing in the suit property, suit is barred
under Section 41(h) of Specific Reliefs Act as plaintiffs have not claimed
relief of declaration for seeking enforcement of right of pre-emption and
declaration for challenging the conveyance entered into between
defendant Nos.1 and 2 due to which, plaintiffs are not entitled for any
interim relief hence, Notice of Motion is liable to be dismissed.
6. Learned advocate for the defendant No.2 argued that
defendant No.1 had served notice on the plaintiffs for calling upon them
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to purchase his 1/3rd share in the suit property but they did not come
forward hence, defendant No.1 has sold his share to defendant No.2. He
argued that defendant No.2 had issued public notices in the newspapers
before purchase of the 1/3rd share of defendant No.1 and relief for
setting aside the conveyance is not claimed by the plaintiffs due to
which, the suit is not maintainable. He argued that possession of the
sold area is already handed over to defendant No.2 by defendant No.1
on 13/11/2017 by executing a possession receipt due to which, the
reliefs claimed in the Notice of Motion have become infructous. He
argued that there are no statements in the plaint that defendant No.2 is
having criminal antecedents due to which, the argument advanced to
that effect by the advocate for the plaintiffs cannot be accepted. He
argued that copy of ration card shows that names of some of the
plaintiffs are removed from the ration card from which, it is clear that
all the plaintiffs are not residing in the suit property. He argued that
defendant No.1 has stated in his reply that there was oral partition of
the suit property between the members of the family of the plaintiffs &
defendant No.1 by virtue of oral family arrangement and accordingly, a
partition wall is constructed in year 1994 during lifetime of husbands of
plaintiff No.1 and plaintiff No.4 for avoiding any interference at the first
floor and ground floor due to which, contention of the plaintiffs cannot
be accepted that suit property is joint family property of plaintiffs and
defendant No.1. He argued that the copies of ADHAR cards produced by
the plaintiffs themselves show that the family members of plaintiffs and
defendant No.1 are residing separately from each other. He argued that
material available on record clearly shows that part of the suit property
is being used for commercial purposes due to which, contention of the
plaintiffs cannot be accepted that suit property is a dwelling house and
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hence, provisions of Section 44 of Transfer of Property Act are not
applicable. He argued that conveyance is entered into on 02/08/2017
which was within the knowledge of the plaintiffs since long yet, suit is
filed on 26/02/2018 which amounts to delay and latches on the part of
the plaintiffs hence, plaintiffs are not entitled for equitable relief of
temporary injunction. In support of his argument, learned advocate for
defendant No.2 has placed reliance on the observations of Hon’ble
Orissa High Court in a case of
Teipal Khandelwal Vs. Mst.Purnima Bai
reported in
AIR 1976 Ori. 62. I have gone through said authority.
7. Contention of the plaintiffs, in brief, is that suit property is
Bungalow known as Lawrie House which is constructed by Pascal
Nunes. Pascal died intestate in year 1980 leaving behind his widow
Jane and three sons by names Lawrie (defendant No.1), Chrysanthus
and Aloysius. Jame died intestate in year 1989. Lawrie, Chrysanthus
and Aloysius inherited the suit property and their names were inserted
in the Property Rights Card in respect of the suit property. Aloysius died
intestate in year 2010 leaving behind plaintiff Nos.1 to 3 as his only
heirs. Chrysanthus died intestate in year 2004 leaving behind plaintiff
Nos.4 to 7 as his only heirs. Plaintiff Nos.1 to 3 are residing on the
ground floor whereas, plaintiff Nos.4 to 7 and defendant No.1 are
residing on the first floor of the suit property. Living room on the first
floor is in common use of plaintiff Nos.4 to 7 and defendant No.1.
Defendant No.1 had sent a letter to plaintiff Nos.1 to 4 on 18/08/2016
that he intends to sale his 1/3rd share in the suit property and if
plaintiffs are interested, they shall pay its cost of 2.5 Crores to him
within seven days by pay order. Since the offer was unreasonable,
plaintiffs had not accepted it. Plaintiffs received a notice on 24/12/2017
from the office of Collector from which, plaintiffs learnt that defendant
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No.1 has transferred his undivided 1/3rd share in the suit property in
favour of defendant No.2 for Rs.1 Crore by executing conveyance
dtd.02/8/2017. Suit property is a dwelling house and it is undivided
property of the plaintiffs and defendant No.1. Since defendant No.2 is
not the member of the family, he is not entitled to its joint possession
and/or enjoyment in view of Section 44 of the Transfer of Property Act
so also, defendant No.1 has no right to induct defendant No.2 in the
suit property.
8. Defendant No.1 has not denied the relationship between
him and plaintiffs however, according to him, he had given opportunity
to the plaintiffs to avail their right to purchase his share in the suit
property but they failed hence, he has sold his share to defendant No.2
and handed over possession to defendant No.2. Defendant No.1 has
further contended that there are four separate units in the suit property
as per the oral family arrangement hence, bar under Section 44 of
Transfer of Property Act is not applicable.
9. Defendant No.2 has contended that he has purchased 1/3rd
share of defendant No.1 in the suit property which had fallen to the
share of defendant No.1 in the oral family partition taken place between
the members of families of plaintiffs and defendant No.1 and suit
property is not a dwelling house as plaintiff Nos.2 & 3 are carrying out
commercial activity from ground floor of the suit property. Defendant
No.2 has further contended that defendant No.1 has put him in
possession of the portion purchased by him from defendant No.1 and he
is in exclusive use and occupation of said portion since 13/11/2017 due
to which, prayer made for grant of temporary injunction for restraining
him from entering into the suit property can not be accepted. It is the
further contention of defendant No.2 that plaintiff Nos.2 to 4 are not
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residing in the suit property, their names are already removed from the
ration card, plaintiffs have suppressed various material facts from the
court like name after marriage of plaintiff No.3.
10. It does not appear to be in dispute that defendant No.1 has
executed a conveyance in favour of defendant No.2 on 02/8/2017.
Description of the property sold under the said conveyance is given in
the Schedule. It is specifically mentioned in the conveyance that
defendant No.1 has sold his undivided joint 1/3rd share in the suit
property to defendant No.2 as is described in the map. Copy of
conveyance dtd.02/08/2017 nowhere shows that defendant No.1 has
sold his separate 1/3rd share in the suit property to defendant No.2.
Furthermore, it does not appear that separate four boundaries of the
sold area are mentioned anywhere in the said conveyance.
11. Copy of map annexed to conveyance is not produced with
plaint by the plaintiffs. Defendant No.2 has produced copy of said map
at Exh.G with his written statement. He has also produced coloured
photographs. Learned advocates for defendants argued that the map
and photographs show existence of partition wall and it is sufficient for
accepting that physical partition had taken place in year 1994. Having
gone through the map and photographs, I could not find any force in
the said argument because, had there really been a partition of the suit
property by metes & bounds between family members of the plaintiffs &
defendant No.1 then, defendant No.1 would have specified in the
conveyance that he has sold his separate share in the suit property to
defendant No.2 and not his undivided joint 1/3rd share.
12. Defendant No.2 has produced copy of possession receipt
dtd.13/11/2017. Even in said possession receipt also, there is specific
mention about selling of undivided joint 1/3rd share of defendant No.1
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in the suit property to defendant No.2.
13. Copies of paper publications issued by defendant No.2 are
also produced on record by defendant No.2. Perusal of those
publications also show that defendant No.2 had issued publications in
newspapers in respect of his negotiating with defendant No.1 for
purchase of 1/3rd undivided right, title and interest of defendant No.1 in
the suit property.
14. Copies electricity bills available on record though
prima
facie suggest that separate electric connections are obtained at the suit
property by the plaintiffs and defendant No.1, said fact in itself is not
sufficient for accepting that suit property is divided by metes & bounds
between the family members of plaintiffs and defendant No.1 because,
again had there really been division of the suit property, defendant No.1
would not have described in the conveyance that he has sold his
undivided joint 1/3rd share in the suit property to defendant No.2.
Again, even if it is accepted that plaintiff Nos.3, 4 & 6 are presently not
residing in the suit property, it is not sufficient for holding that they
have no rights and interests in the suit property because, it does not
appear that those plaintiffs have relinquished their rights in the suit
property either in favour of other plaintiffs or defendant No.1.
15. It is the contention of the defendants that defendant No.1
had served a notice on the plaintiffs for calling upon them to purchase
his 1/3rd share in the suit property but they did not come forward
hence, defendant No.1 has sold his share to defendant No.2. Plaintiffs
have contended that said notice was served on plaintiff Nos.1 to 4 only
and not on other plaintiffs. It does not appear to be in dispute that suit
property has been inherited by all the plaintiff and defendant No.1. No
reason is given on behalf of defendant No.1 for not serving notice on
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other plaintiffs than plaintiff Nos.1 to 4 for calling upon them to
purchase his 1/3rd share. Again, it does not appear to be in dispute that
defendant No.1 has sold his 1/3rd share to defendant No.1 for Rs.1
Crore only even though, he had called upon plaintiffs in the notice to
pay him Rs.2.5 Crores for purchasing his share. No reason for
mentioning such a huge price in the notice is given on behalf of the
defendant No.1.
16. Thus, the material available on record
prima facie shows
that suit property is joint/undivided family property of plaintiffs and
defendant No.1. Material available on record
prima facie suggests that
commercial activity is being carried out from the portion of ground
floor. Learned advocate for defendant No.2 argued that commercial
activity is being carried out from the ground floor hence, suit property is
not a dwelling house. His reliance is on the observations of Hon'ble
Orissa High Court in a case of
Teipal Khandelwal Vs. Mst.Purnima Bai
cited above. On the other hand, by placing reliance on the observations
of Hon'ble Calcutta High Court in a case of
Dulal Chandra Vs.
Gosthabehari Mitra & in a case of
Mohiddin Molla Vs. Jitendranath
Karmarkar cited above, learned advocate for the plaintiff argued that
suit property is a dwelling house.
17. In a case of
Teipal Khandelwal Vs. Mst.Purnima Bai,
Hon'ble Orissa High Court has held that the test to determine whether a
house is a dwelling house or not is that the house must have been
meant for residential purposes though temporarily it might be used for
other purposes according to the exigency of circumstances. In a case of
Mohiddin Molla Vs. Jitendranath Karmarkar, Hon'ble Calcutta High
Court has held that simply because there is a shop in the suit dwelling
house it cannot be stated that the character of the dwelling house has
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been changed. Having considered the said legal position, this court is of
the opinion that even if it is accepted that portion of the ground floor of
the suit property is being used for commercial purposes, it cannot
thereby be said that suit property is not a dwelling house.
18. Admittedly, defendant No.2 is not the member of families
of plaintiffs and defendant No.1. Section 44 of the Transfer of Property
Act is very specific. Character of transferee of a share of a dwelling
house is not at all relevant while considering the provisions said Section
due to which, it is not necessary to consider the arguments advanced by
learned advocates for both parties in respect of criminal antecedents of
defendant No.2. Though it appears that there is no bar for transfer of an
undivided share in a dwelling house belonging to an undivided family
to a person who is not a member of undivided family, said Section
prescribes that where the transferee of a share of a dwelling house
belonging to an undivided family is not a member of the family, nothing
in said Section shall be deemed to entitle him to joint possession or
other common or part enjoyment of the house. Since the material
available on record
prima facie suggests that suit property is a dwelling
house and undivided property of plaintiffs and defendant No.1, the
transfer of his 1/3rd share in the suit property by defendant No.1 in
favour of defendant No.2 will not entitle defendant No.2 to joint
possession or other common or part enjoyment of suit property. This
court is of the opinion that by virtue of Section 44 of Transfer of
Property Act, the remedy available with defendant No.2 is to seek
partition for possession of the undivided share purchased by him from
the co-sharer i.e. from defendant No.1.
19. Learned advocate for the defendant No.2 argued that
possession receipt dtd.13/11/2017 produced on record by defendant
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No.2 conclusively shows that possession is already handed over by
defendant No.1 to defendant No.2 before filing of the suit itself due to
which, according to him, prayers made for grant of temporary
injunction can never be accepted. It is a matter of record that defendant
Nos.1 and 2 had personally appeared before the court on service of
Notice of Motion and they had made a statement that defendant No.1
has yet not put the defendant No.2 in possession of the sold area of the
suit property. By recording so in the order, my learned Predecessor has
granted ad-interim temporary injunction in favour of the plaintiffs in
terms of prayer clauses (a) and (b) of the plaint. Even though, it is
mentioned in the copy of possession receipt produced by defendant
No.2 that defendant No.1 has delivered possession of sold area to
defendant No.2, statements of defendants recorded by my learned
Predecessor and order passed in view of these statements would prevail
due to which, this court is of the opinion that the argument of learned
advocate for defendant No.2 cannot be accepted that defendant No.1
has put the defendant No.2 in possession of the sold area before filing
of the suit and the prayers made by the plaintiffs in the Notice of
Motion have become infructous.
20. Learned advocates for the defendants submitted that no
relief is claimed in the suit for cancellation of the conveyance executed
by defendant No.1 in favour of defendant No.2 due to which, suit is not
maintainable. Admittedly, plaintiffs have not claimed the relief of
cancellation of said conveyance however, this court is of the opinion
that Section 44 of Transfer of Property Act does not create a bar for
transfer of an undivided share in a dwelling house belonging to an
undivided family to a person who is not a member of undivided family
due to which, merely because defendant No.1 has sold his undivided
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joint 1/3rd share to defendant No.2, it would not give any right to the
plaintiffs to seek cancellation of the said sale transaction due to which,
this court is of the opinion that the fact that plaintiffs have not claimed
relief of cancellation of the conveyance in itself is not sufficient to hold
that suit is not maintainable.
21. Thus, having regards to the material available on record
and provisions of Section 44 of Transfer of Property Act, this court is of
the opinion that
prima-facie case and balance of convenience both do
lie in favour of the plaintiffs. In the result, this court is of the opinion
that if temporary injunctions as prayed are not granted in favour of the
plaintiffs, it will cause an irreparable loss to them. Defendant No.2 can
very well resort to the remedy available to him under Section 44 of the
Transfer of Property Act for seeking partition and separate possession of
the 1/3rd share which he has purchased from defendant No.1 and in
that view of the matter, there is no question of causing any loss to him if
he restrained from entering into the suit property. For all these reasons,
by answering point Nos.(i) to (iii) accordingly, I pass the following
order.
O R D E R
Notice of Motion No.1154 of 2018 is allowed in terms of its
prayer clause (a) and (b).
Date : 22/11/2021. (P.P.RAJVAIDYA)
Dictated on : 22/11/2021 Judge, C.R.No.62,
Checked on : 23/11/2021. City Civil Court,
Signed on : 23/11/2021. Mumbai.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER”
01.12.2021 at 3.00 p.m. Mrs.Rupali S. Bhor
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge(with CR No.) HHJ SHRI. P.P.RAJVAIDYA
(C.R.No.62)
Date of pronouncement of Order 22.11.2021
Order signed by P.O. on 22.11.2021
Order uploaded on 01.12.2021
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